New York, New Haven, & Hartford Railroad v. Miller, 165 Mass. 514

New York, New Haven, & Hartford Railroad v. Miller

165 Mass. 514 | Mass. | 1896

Knowlton, J.

In New York & New England Railroad v. Railroad Commissioners, 162 Mass. 81, it was held that the St. *516of 1892, c. 171, was constitutional, and was intended to apply to the cases then before the court, on the ground that, when a railroad company takes the title to land for its railroad under a warranty deed instead of by a taking and an assessment of damages, the same rule applies in regard to ways of necessity as when land is purchased for other uses. In regard to the question raised in the present case, this language was used in the opinion: “ Our decisions hold that, when land over which there is no public way is taken for a railroad, there is no right of crossing it except as prescribed by the county commissioners, but the statute assumes that the county commissioners when requested will establish crossings where they are reasonably necessary.” Pub. Sts. c. 112, § 118. In this particular, the duty put upon the county commissioners secures to the landowner an advantage as great as the law gives when one has sold land which furnishes his only means of access to his remaining land, but if the county commissioners assess damages without ordering the construction of a crossing, the petitioner’s damages are for an absolute control by the railroad company of the land taken, which leaves him no right to cross. Presbrey v. Old Colony Newport Railway, 103 Mass. 1. Old Colony Railroad v. Miller, 125 Mass. 1. Googins v. Boston & Albany Railroad, 155 Mass. 505. If the landowner elects to have his damages assessed in that way, the railroad company failing to have a legal right to cross secured to him, it would be most unjust to permit him afterwards to have a way over the railroad against the objection of the railroad company.

The St. 1892, c. 171, does not apply to this case. By its terms it includes only cases in which no compensation is paid by the railroad company for cutting off access to a part of the petitioner’s lands. It seems to have been enacted with particular reference to cases where lands are bought for a railroad. The defendant’s damages were allowed and paid upon the theory that he was permanently deprived of his right of access to the lands on the opposite side of the railroad. At the trial in the Superior Court he insisted upon being treated as without a legal right to pass to this land, and he maintained his contention upon exceptions taken by the railroad company to this court. Old Colony Railroad v. Miller, ubi supra. It would seem that in assessing his *517damages the jury included nearly if not quite the whole value of the land cut off. The application at this time of the rule which has been laid down in other cases, and which he invoked when his damages were assessed, does him no injustice.

Judgment affirmed.